1510614 (Migration)

[2016] AATA 4230

1510614 (Migration) [2016] AATA 4230 (11 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Richard Monaghan

CASE NUMBER:  1510614

DIBP REFERENCE(S):  CLF 2012/173687

MEMBER:Hugh Sanderson

DATE:11 August 2016

PLACE OF DECISION:  Sydney

DECISION:The tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 11 August 2016 at 3:17pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 24 July 2015 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 26 February 2014 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 because the delegate was not satisfied that the applicant had been in a de facto relationship with the sponsoring partner for at least 12 months at the time of the application and therefore did not meet the requirements for a de facto relationship in s.5CB, reg 1.09A and reg.2.03A.

   Background

4. The applicant is a citizen of Ireland and is currently 33 years old. He first entered Australia on 22 August 2012 holding a Working Holiday visa.

5. The sponsor of the applicant was Vita Frances Carbone. She was born in Australia and is an Australian citizen. She is currently 25 years old.

6. The parties claimed that they first met each other in December 2009 when they were both holidaying in Italy. They continued to keep in touch with each other after that date. When the applicant arrived in Australia he commenced living with the sponsor and her family in her parent’s home.

7. When the applicant first started living with the sponsor’s parents he was living in a guest bedroom. The sponsor was studying in Bathurst and the applicant travel to Bathurst every Thursday and the sponsor would travel to Sydney on some weekends. When the sponsor finished her studies in September 2012 she returned to Sydney and it was claimed the parties started living together.

8. The department wrote to the applicant in February and March 2014 requesting further information as to the genuineness of the relationship. The department noted the requirement that the parties have been in a de facto relationship for at least 12 months at the time of the application information was requested in respect of this issue. No further documentation was provided to the department.

9. The delegate who considered the application noted the following issues:

   ·The only document provided as to the financial aspects of the relationship was confirmation that the parties had opened joint bank account on 4 April 2012;

   ·Statements had been provided from the sponsor’s parents confirming that the applicant had been living at their home and they believed the relationship was genuine;

   ·In the statement of the sponsor, she had stated that the de facto relationship only commenced a few weeks after the applicant arrived in Australia;

   ·There is limited information which would indicate the parties had committed to a de facto relationship 12 months prior to the date of lodgement of the application;

   ·No convincing information was provided which would indicate the parties presented themselves as being in a de facto relationship for the 12 months prior to the application; and

   ·There was limited information which would indicate that the parties consider their relationship as a long term one.

10. Taking all these factors into account, the delegate was not satisfied that the parties had been in a de facto relationship for at least 12 months at the time of the application and therefore the requirement in reg.2.03A was not satisfied. Accordingly, the delegate found that the applicant did not meet the criteria in cl.820.211(2). The delegate found that the applicant did not satisfy any of the alternate criteria in cl.820.211 and refused the application.

    The hearing

11. The applicant appeared before the tribunal on 11 August 2016 to give evidence and present arguments. The applicant was represented in relation to the review and the agent attended the hearing. The applicant did not provide the tribunal with any further information prior to the hearing.

12. The applicant stated that his relationship with the sponsor ended in 2013. He acknowledged that as he was no longer in a relationship with the sponsor that he did not meet the criteria for the grant of the visa and the decision to refuse in the visa would have to be affirmed.

13. The applicant said that he saw a migration agent (not the one he is currently using) in 2013 and advised the agent that his relationship with the sponsor was going through difficulties and was likely to end. He asked the migration agent whether he would be able to remain in Australia as a skilled migrant. The applicant said that he believed the migration agent was making arrangements for an application to be filed for him to be able to stay in Australia as a skilled migrant. He said that when he received the decision of the department the migration agent advised him to lodge a review of that decision despite the fact that his relationship with the sponsor had ended. The applicant said that he had been under stress from his work.

14. For the following reasons, the tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether, at the time of this decision, the applicant continues to be the de facto partner of the sponsoring partner.

16. The applicant is required to meet the criteria in cl.820.211(2) at the time of the application and at the time of the decision. There is no claim made by the applicant that he met any of the alternate criteria in cl.820.211.

17. Clause 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen.

18. ‘De facto partner’ is defined in s.5CB of the Act and provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2).

19. The applicant has advised the tribunal that his relationship with the sponsoring partner ended in 2013. Although it was indicated the breakdown of the relationship was not the fault of the applicant, the parties do not have a mutual commitment to a shared life to the exclusion of all others and their relationship is not continuing. They live separately and apart on a permanent basis. The sponsor is no longer in a continuing relationship with the applicant and is no longer sponsoring him.

20. On the basis of the above the tribunal is not satisfied that the requirements of s.5CB(2) are met at the time of the decision. Therefore the applicant does not meet cl.820.221(1). There is no information before the tribunal that the applicant would meet any of the alternate criteria in cl.820.221. Therefore the applicant does not meet the criteria in cl.820.221 for the grant of the visa.

21. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa and the decision to refuse the applicant the visa must be affirmed.

    DECISION

22. The tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Hugh Sanderson
    Member